Is 8 enough? Court vacancy could roil possible election case

Justice Ruth Bader Ginsburg’s death has left the Supreme Court shorthanded during a polarizing presidential campaign in which President Donald Trump has already suggested he may not accept the outcome and the court could be called on to step in and decide the fate of the nation.

It’s the second time in four years that a justice has died during an election year, though that eight-justice court was not asked to referee any election disputes in 2016. Today, both sides have armies of lawyers ready to take the outcome to court.

The Supreme Court’s role, then, could be vital in deciding a contested election, as it was in 2000 when its 5-4 ruling effectively handed the presidential election to Republican George W. Bush.

Just moments after Ginsburg’s death the prospect of a disputed election and the role of the court in deciding it was already causing anxiety across the political spectrum.

But the makeup of the court is significantly different today from what it was after Justice Antonin Scalia died suddenly in February 2016.

Conservative, Republican-appointed justices hold five of the eight seats, including Chief Justice John Roberts, who is closest to the center of the court on many issues. Liberals appointed by Democrats have the other three.

In 2016, Scalia’s death left the court evenly divided between four conservatives and four liberals, and it took at least one justice to cross over, in essence, to form a majority on the court.

Any time the justices divide 4-4 in a case, the lower court ruling remains in place. If say, the court were to split that way in a case involving the election, the tie would ratify whatever the lower court decided.

Trump said Saturday he has an “obligation” to fill the seat “without delay,” and Senate Majority Leader Mitch McConnell, R-Ky., is promising to give Trump’s nominee a prompt vote in the GOP-controlled chamber. Last time, the court was down one justice for more than a year, when McConnell and the Republicans refused to act on President Barack Obama’s nomination of Judge Merrick Garland.

University of Kentucky law professor Joshua Douglas, who worried in 2016 about what he called a nightmare 4-4 election case outcome at the Supreme Court, said it would be worse in 2020 if Trump and McConnell move quickly to fill the seat and the election results wind up in court.

“To me, the scarier prospect is having a 5-4 decision on a presidential election where the swing vote comes from a new justice,” appointed by the candidate who would get another four years in the White House as a result, Douglas said. He said the majority in such a case also likely would include two other justices appointed by Trump, Neil Gorsuch and Brett Kavanaugh.

In 2016, “the court actually did a pretty good job when the court had eight justices for a while. It didn’t have the kind of nightmare 4-4 decision on an issue that affects the country,” he said.

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